Condom Use in Pornography Production Becomes Law in Los Angeles

Los Angeles has become the first city in the nation requiring performers use condoms while shooting adult films in areas that require permits.

It started with the AIDS Healthcare Foundation (AHF), which in December gathered some 71,000 signatures in support of the initiative to mandate condoms. This is no small victory for the AHF, which has been battling the adult industry for years over practices that they consider pose a needless risk to performers.

The adult industry disagrees vehemently, contending that their self-regulation --- which requires performers to test for the human immunodeficiency virus (HIV) and sexually transmitted infections (STIs) every 28 days -- is sufficient.

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They point out that there have only been ten cases of HIV in the industry since 2005.

Jeffrey Douglas, chair of the Free Speech Coalition, a group that lobbies for adult entertainment rights, told the LA Weekly, "In all of the tens of thousands of unprotected sex acts [since 2005], there is only one documented occasion where someone transmitted HIV on the set."

Sex worker activists contend that while the industry has its issues, change should come from within. Efforts from outside of the industry by people who do not understand the concerns of those within have historically hurt performers more than helped them.

They cite the law 18 U.S.C. § 2257, which, in order to protect minors from being exploited in pornography, requires that all performers submit copies of state-issued identification at the time of shooting.

Copies of performer IDs are then submitted to "any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct."

This means that everyone involved in the creation and distribution of adult content must be given the personal information of hundreds of performers, exposing the latter to the unnecessary risk of harassment, abuse and identity theft.

But the AHF will not be persuaded that the industry knows better, and, after the support they received for their initiative, neither does the L.A. City Council. It was the overwhelming support that the condom measure received that prompted the City Council to vote on it, so certain were they that voters would approve it come June when it was put on the ballot.

The move by the Council to vote on the measure would spare the city the $4 million ballot cost, and while at first they came one vote shy of adopting the measure, last week they got nine, one more than the required eight to adopt the initiative. On Monday, L.A. Mayor Antonio Villaraigosa signed the initiative -- called the City of Los Angeles Safer Sex in the Adult Industry Act -- into law.

The law will go into effect 41 days after the City Clerk posts the ordinance publicly.

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What the Safer Sex in the Adult Industry Act Says

The five-page ordinance cites the adult industry as responsible for the ongoing epidemic of STIs and the HIV/AIDS crisis in Los Angeles and emphasizes condoms as the most effective way to prevent further spread of infection.

Unlike what has been reported, this ordinance does not require condoms at all porn shoots. Rather, because the measure is tied to the process of acquiring permits, only performers who are shooting outside of a certified sound stage need to use protection when engaging in vaginal or anal penetration. Neither does the ordinance have a provision for the use of protection during oral sex.

AHF President Michael Weinstein, who spoke with us yesterday afternoon, elaborated on the compromise AHF made regarding oral sex.

"The risk of infection through oral sex is possible but it's very low," Weinstein said. "I think the acceptance of condoms for oral sex is much lower than for vaginal or anal sex. There is the issue with the taste of the condom, and the feeling of plastic in your mouth. Obviously your mouth is much more sensitive than an anus or a vagina."

But the objections to condoms don't end there for performers. Kayden Kross elaborated when she spoke with the Daily Beast: "Normal sex lasts about 15 minutes and it is slower and it is done in more natural positions. We do sex for 45 plus minutes, faster and in more hardcore positions while opening up for the camera. That kind of friction with a condom is very painful. As a performer, I used a condom twice and never again."

Chanel Preston echoed her concerns: "They don't realize that we can shoot for five hours in a day and condoms are really painful on our bodies to use them for so long. Someone should not be coming in telling us how to do our job best."

Nina Hartley, a porn performer, producer and a staunch opponent of AHF, raised the same issue when we spoke to her yesterday, adding that irritated skin may make it easier for STIs to be transmitted.

"That is the most ridiculous thing of all the excuses the pornographers have come up with," Weinstein said in response. "First of all, as far as that goes, it's been used in gay films for 25 years and the anus is tighter than the vagina. If there was a problem with that, you would have seen it in gay films. Also - regardless of an irritation, if you don't have unprotected sex, you're not going to have an infection."

When we reminded Weinstein that performers don't live in a vacuum where the only people they have sexual contact with are other performers, he said, "Hopefully they'll use condoms there as well."

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What "Condom Police"?

During an AHF teleconference about Villaraigosa's signing of the ordinance, Weinstein told listeners that there is already a law in the books mandating condom use in effect, referring to the Division of Occupational Safety and Health's (OSHA) Bloodborne Pathogens Standard, which requires workplaces to take precautions to safeguard employees from exposure to bacteria and viruses transmitted through contact with infected blood. Cal-OSHA has interpreted and extended this federal law to include adult performers, and cited it to fine producers that do not mandate condom usage in their films.

The adult industry has fought this interpretation, which was originally created to protect workers in hospitals, labs and healthcare facilities. At the behest of AHF, Cal-OSHA is currently working on a version that will apply exclusively to adult performers, but progress has been slow.

According Lori Yeghiayan, Associate Director of Communications at AHF, limited funding has delegated Cal-OSHA to a largely reactionary role, meaning its investigations focus on complaints, but do not proactively seek out violations.

This issue raises important questions about the enforcement of the new ordinance. Though supportive of the position on condom use to protect employees from bloodborne pathogens, the office of City Attorney Carmen Trutanich has doubts about the ability of the strapped Los Angeles Police Department to take the role of enforcer on porn sets. Likewise, county health officials have raised concerns about regulating the industry through the Department of Public Health.

To this end, Weinstein assured us that the state will not be footing the bill of enforcement: the ordinance specifically sets aside the fees paid by studios for permits to be used to provide inspectors.

"They haven't been determined yet," Weinstein said of the cost to acquire a permit. "It is not anticipated, based on what we desire or what has been discussed, that there will be uniformed police officers as the primary enforcers of this. We think it's appropriate to have either Public Health people or nurses to do it."

When asked what she thought about nurses on her sets, Hartley responded: 'They're going to require state employees to come and sit around watching people having sex?"

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Where Are the Performers in All of This?

Save for Jenna Jameson, whom Weinstein frequently cites as a supporter, the adult industry is largely opposed to the ordinance. Dan O'Connell of Girlfriend Films told the Daily Beast that the ordinance would force the industry to backpedal into the underground, making the law harder to enforce and creating more danger for performers.

"You will see a lot of cam shows with girls bringing the guy into her home to shoot and that will not be with condoms and might even be without testing," O'Connell said. "For testing to work as protection you really need to have the industry organized."

As mentioned previously, the adult entertainment industry requires that performers get tested for STIs and HIV every 28 days. This is true only of straight porn. Gay porn, which mandates condoms already, does not require testing.

Weinstein likes to cite the gay porn industry as an example of how standardizing condom use can work. But the straight adult industry worries that a condom default would cause performers and studios to become lax about testing. They believe that the HIV cases they have seen in the industry occurred as a result of performer crossover into gay porn. Testing is critical, they argue. Condoms, after all, are not infallible.

The ordinance makes no mention of testing.

When asked, Weinstein told us it was something AHF hoped the industry would continue to enforce.

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Where to Next?

Weinstein said his next move was to rally support for a county initiative.

"This city ordinance is based on permitting," he explained. "It's under the zoning laws. The city has authority on zoning laws. The county initiative is more like a work-place license that you would have for a massage parlor or nail salon - those types of things where there are health considerations -- so it has nothing to do with whether it's done in a house or in the street. It's an activity that's being monitored."

According to Weinstein, the mayor of Simi Valley has indicated that he intends to submit the L.A. measure for a vote there.

"I think that will be the response of most of Ventura County," Weinstein said. Other plans include taking the measure to San Francisco.

The AHF means business. When the adult industry threatened to leave the county for a less restrictive place in California, Ged Kenslea, a spokesperson for AHF, told the LA Times, "If they go to Ventura County, we will follow them there."

When the industry threatened to leave California altogether if the measure was adopted state-wide, Kenslea told the Times, "When the industry says we'll go to Nevada, we vowed we will follow them."

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